Legislature(1997 - 1998)

02/19/1998 01:45 PM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                                                                               
             HOUSE FINANCE COMMITTEE                                           
                February 19, 1998                                              
                    1:45 P.M.                                                  
                                                                               
TAPE HFC 98 - 34, Side 1.                                                      
TAPE HFC 98 - 34, Side 2.                                                      
TAPE HFC 98 - 35, Side 1.                                                      
                                                                               
CALL TO ORDER                                                                  
                                                                               
Co-Chair Therriault called the House Finance Committee                         
meeting to order at 1:45 P.M.                                                  
                                                                               
PRESENT                                                                        
                                                                               
Co-Chair Hanley   Representative Kelly                                         
Co-Chair Therriault   Representative Kohring                                   
Representative J. Davies  Representative Martin                                
Representative G. Davis  Representative Moses                                  
Representative Foster  Representative Mulder                                   
Representative Grussendorf                                                     
                                                                               
ALSO PRESENT                                                                   
                                                                               
Representative Fred Dyson; Representative Ethan Berkowitz;                     
Representative Gene Kubina; Eddie Grasser, Staff,                              
Representative Beverly Masek; Anne D. Carpeneti, Assistant                     
Attorney General, Department of Law; Jim Stratton,                             
Director, Division of Parks & Outdoor Recreation,                              
Department of Natural Resources; Barbara Brink, (Testified                     
via Teleconference), Director, Public Defender Agency,                         
Department of Law, Anchorage.                                                  
                                                                               
SUMMARY                                                                        
                                                                               
HB 231 An Act relating to regulation of snowmobiles.                           
                                                                               
HB 231 was HELD in Committee for further                                       
consideration.                                                                 
                                                                               
HB 245 An Act relating to minimum sentences for assault                        
in the fourth degree that is a crime involving                                 
domestic violence; providing that a prisoner may                               
not contact the victim of the offense when                                     
provided access to a telephone or otherwise                                    
immediately after an arrest; and amending Rule                                 
5(b), Alaska Rules of Criminal Procedure.                                      
                                                                               
HB 245 was HELD in Committee for further                                       
consideration.                                                                 
HOUSE BILL NO. 245                                                             
                                                                               
"An Act relating to minimum sentences for assault in                           
the fourth degree that is a crime involving domestic                           
violence; providing that a prisoner may not contact                            
the victim of the offense when provided access to a                            
telephone or otherwise immediately after an arrest;                            
and amending Rule 5(b), Alaska Rules of Criminal                               
Procedure."                                                                    
                                                                               
REPRESENTATIVE FRED DYSON stated that HB 245 would                             
establish two important steps against domestic violation                       
(DV) in the State.  It would place into effect graduated                       
minimum sentences for domestic violence offenders.  Just as                    
the law recognizes the need to ratchet up penalties for                        
drunk drivers, mandatory minimum sentences for repeat DV                       
offenders delivers the message that Alaska will no longer                      
tolerate this cycle of violence.                                               
                                                                               
HB 245 would prevent defendants from using their "one phone                    
call" to contact their victims following their arrest.                         
Victim groups and police departments throughout the State                      
recognize this action as another important step in the                         
fight for victims' rights.                                                     
                                                                               
Representative Dyson urged members to consider work draft                      
version 0-LS0450\P, Luckhaupt, 1/16/98 the "P" version                         
rather than the 0-LS0450\Q, Luckhaupt, 2/19/98 the "Q"                         
version.                                                                       
                                                                               
Representative Kelly asked if the intent was that the                          
offender not communicate at all with the victim or not                         
engage in threatening speech with the victim.  He pointed                      
out that currently, threatening speech is a crime.                             
                                                                               
REPRESENTATIVE ETHAN BERKOWITZ responded that the "P"                          
version contained language addressing Representative                           
Kelly's concern.  The "Q" version specifies only domestic                      
violence offenses.  He believed that it would be                               
appropriate to preclude any contact between an offender and                    
the victim. That contact could be construed as "witness                        
tampering" conditions which domestic violence are                              
vulnerable too.                                                                
                                                                               
Co-Chair Therriault noted that the "Q" version would place                     
restrictions on crimes that relate to domestic violence.                       
These crimes are specified only in three sections of the                       
proposed bill.  He recommended that there could be other                       
crimes against a person that the restrictions could apply                      
too.                                                                           
                                                                               
Co-Chair Therriault questioned language used on Page 2,                        
Section 4, relating to the minimum terms of imprisonment.                      
He requested additional information to substantiate the                        
recorded numbers.  He inquired if they were the average                        
sentences ordered by judges and if they were, would they                       
not then become the minimum.  He believed that ultimately,                     
people would be sentenced to the average and that the zero                     
fiscal note would not adequately reflect the impact of such                    
action.  Co-Chair Therriault focused on the amendment                          
distributed by the Department of Law. [Copy on file]                           
                                                                               
Representative Berkowitz responded to comments by                              
Representative Therriault.  Regarding minimum sentence, an                     
expectation exists that if there were a minimum prison                         
sentence handed down by the judge, there would then become                     
a deterrent for anyone anticipating committing such a                          
crime.  He added that the amendment had proposed a minimum                     
fine as clarified by the Department of Law.  Currently,                        
there is no easy way to pursue someone who has violated the                    
order once the sentence has been passed down.  The                             
legislation would provide clear definition for the                             
prosecution.                                                                   
                                                                               
Co-Chair Hanley questioned the problem, the legislation                        
attempts to address.  Representative Dyson replied that it                     
would provide consistency in domestic violence sentencing,                     
with progressive and harsher sentences for the repeat                          
offenders.  Co-Chair Hanley asked if it currently was a                        
crime to make a threatening phone call.  Representative                        
Berkowitz explained that it could be construed as                              
harassment.                                                                    
                                                                               
ANNE D. CARPENETI, ASSISTANT ATTORNEY GENERAL, DEPARTMENT                      
OF LAW, offered to answer some of the questions raised by                      
the Committee.  She commented that the phone call made                         
might not be an intentionally threatening call, although                       
any call made to the victim could be threatening if it were                    
made immediately following the arrest.  Co-Chair Hanley                        
asked how would it be posted that the offender would be                        
allowed only one call and that call could not be to the                        
victim.  Ms. Carpeneti explained that a notice could be                        
posted on the telephone.                                                       
                                                                               
Representative Kelly asked for the criteria used by the                        
police officer to make the arrest.  Ms. Carpeneti explained                    
that the police officer would go to the scene of the crime,                    
observe the damages, talk to the witnesses and then make a                     
determination if there had been a probable cause violation                     
of the law.  She advised that many injuries do not surface                     
immediately following the incident.                                            
                                                                               
Representative Kelly ascertained that the legislation could                    
be taking away someone's right to communicate with their                       
family.  Ms. Carpeneti noted that the prohibition would be                     
made after the decision that there had been probable cause                     
to arrest the offender. The proposed action would not apply                    
to cases before the police officer made that determination.                    
                                                                               
Representative J. Davies voiced concern that the only                          
control used to achieve the goal would be a note on the                        
phone.  He elaborated that there must be control over the                      
number dialed.  Ms. Carpeneti understood that the police                       
officer would dial the number and would then leave the                         
room.  If the person then decided to dial another number,                      
they would be violating the proposed statute, which would                      
then become a further offense.  Representative Berkowitz                       
added that the way in which this would be handled would                        
depend on the facility where the offender had been brought.                    
                                                                               
Representative Dyson agreed with Representative J. Davies'                     
concern, noting that to expect an honor system to work with                    
this client population would be a contradiction of terms.                      
He hoped that each jurisdiction would do the necessary                         
things to preclude the call being made to the victim.   The                    
purposed law should empower them to do that screening.                         
                                                                               
Representative G. Davis commented that a phone call                            
involves two parties and that the person answering has the                     
power to hang up. He voiced concern with the proposed                          
language "probable cause", and questioned the amount of                        
discretion given to the law enforcement community.                             
                                                                               
BARBARA BRINK,(TESTIFIED VIA TELECONFERENCE), DIRECTOR,                        
PUBLIC DEFENDER AGENCY, DEPARTMENT OF LAW, ANCHORAGE, noted                    
that in current law it is a crime to call a victim and                         
threaten them.  There are a wide variety of statutes, which                    
cover the dialed conversation depending on how egregious                       
the content was.  She cautioned the Committee in fashioning                    
a rule that was so broad that it would take away the right                     
to communicate with one's family.                                              
                                                                               
Ms. Brink noted that not every victim has the same needs.                      
Victims even of domestic violence often want to communicate                    
with their families.  She pointed out that in many cases                       
these people live together, have children together, debts,                     
bills and co-mingled assets.  She stressed that it is not                      
every victim who wants to preclude communication.                              
                                                                               
Ms. Brink commented that the provision involving probable                      
cause creates a grave concern.  In identifying who the                         
people in prison are, it is important to remember that in                      
Alaska, an assault charge could be given for disorderly                        
conduct.  In this State, if a police officer investigates a                    
domestic violence complaint, there is a mandatory arrest                       
provision.                                                                     
                                                                               
Passage of such broad language in the bill, would preclude                     
any contact with other people who have been "thrown into                       
this mitt".  She pointed out that if a kid went for a "joy                     
ride" in their dad's car and got stopped, he would not be                      
able to call home.                                                             
                                                                               
Ms. Brink voiced concern with mandatory minimum sentences                      
and that no matter how many cases there are, each                              
individual situation has "quirks" associated with it. A                        
mandatory minimum sentence removes the judges ability to                       
fashion appropriate punishment considering all the                             
circumstances of that case.  The criminal code passed in                       
1982 tried to make a logical and sensible system out of it.                    
                                                                               
Ms. Brink noted that she did not understand the fiscal                         
costs associated with the bill.  When a prosecuting                            
attorney represents someone charged with an offense,                           
statistics will conform to the national average.  At                           
present time, over 90% of the cases are settled without                        
going to a jury trial.  She believed that one reason many                      
cases are settled is that they can make a "pitch" in front                     
of the judge.  If a person realized that they were                             
definitely going to go to jail for 30 days, they would be                      
more reluctant to accept responsibility.                                       
                                                                               
Ms. Brink advised that domestic violence is a crime with                       
such heated emotions on both sides that a deterring value                      
of a higher sentence would not come into the perpetrator's                     
mind when he is in the middle of the scene.                                    
                                                                               
Representative Kelly requested clarification regarding the                     
mandatory arrest provision.  Ms. Brink understood that the                     
Victim's Crime Act, passed last session, stipulates that                       
when a police officer is sent to a scene, the police                           
officer is required to make an assessment of that situation                    
and determine who was the principle aggressor.  She                            
believed that the police officer was responsible to make an                    
arrest.                                                                        
                                                                               
Ms. Carpeneti countered that the Domestic Violence Act,                        
passed two years ago by the Legislature, did contain a                         
mandatory arrest for domestic violence only upon a                             
determination of probable cause that domestic violence had                     
occurred.  She reiterated that police officers are not                         
required to make an arrest at a scene where there is                           
nothing going on.  Even under the circumstances of probable                    
cause, a mandatory arrest applies when a police officer,                       
after an investigation determines that probable cause                          
exists.  The reasoning is to diffuse very dangerous                            
situations, removing the violator from the home in order                       
that more violence does not occur.                                             
                                                                               
Ms. Carpeneti continued response to the testimony given by                     
Ms. Brink.  She clarified that there are other crimes that                     
can be committed if a person threatens another person over                     
the telephone.  The proposed legislation addresses the                         
telephone call itself, which by itself could be a threat.                      
The expectation is that not many cases will arise from this                    
law and that the proposed legislation would hopefully                          
establish deterred defense.  The victims right to                              
communicate with the defendant would not be taken away.                        
                                                                               
Co-Chair Hanley asked how soon would the defendant be given                    
the right to make the initial call and then how much time                      
would need to lapse between that call and the call to the                      
victim.   Ms. Carpeneti replied that the first call could                      
be made immediately following the arrest.  Representative                      
Berkowitz and Ms. Carpeneti agreed that a person has the                       
right to one phone call; subsequent calls do not fall under                    
the statute.  Ms. Carpeneti suggested adding clarifying                        
language regarding concerns and timing of the phone call.                      
                                                                               
Co-Chair Hanley thought that a problem could arise if the                      
victim accompanied the perpetrator to the jailhouse given                      
the proposed language.  Ms. Carpeneti advised that the                         
legislation was not intended to cut off communication for                      
married couples sharing accounts and assets in common.                         
                                                                               
(Tape Change HFC 98- 33, Side 2).                                              
                                                                               
Representative Berkowitz emphasized that "no contact" means                    
"no contact".  If a victim wants to communicate with the                       
defendant, the normal course would be to get the bail                          
conditions released.  Also, a judge can lift at anytime the                    
"no contact" order.                                                            
                                                                               
Ms. Carpeneti thought that the situation could vary                            
throughout the State depending on the facility, which the                      
offender had been taken to.  She thought that the victim                       
would not want contact until the defendant had come before                     
the judge and then at that time, the court could make the                      
"no contact" order.                                                            
                                                                               
Co-Chair Hanley asked if the proposed mandatory minimum                        
sentences would be consistent with those in current                            
domestic violence legislation.  He asked if it would be                        
possible to be convicted of two crimes.  Ms. Carpeneti                         
replied that currently, presumptive sentencing does exist.                     
Representative J. Davies advised that the right to                             
communication would be exercised through AS 12.25.150(b).                      
                                                                               
Representative Kelly asked at what point would the victim                      
loose the window of time to drop charges.  Representative                      
Berkowitz advised that in the State Of Alaska, victims                         
never have that right because if you give the victim the                       
ability to drop charges, the defendant then has leverage                       
over the victim.  He stressed that a crime against a                           
person, is a crime against an entire community.                                
                                                                               
Representative Kelly questioned the advantage of the                           
proposed legislation.  Representative Berkowitz advised                        
that it could be assessed as "witness tampering" if the                        
defendant tried to manipulate the victim. A conversation                       
would have to be threatening for the legislation to apply.                     
                                                                               
Representative Kelly asked how many hours would need to                        
pass before the defendant could ask the victim about the                       
family.  Representative Berkowitz advised that period would                    
extend from immediately after the arrest until the                             
arraignment, less than twenty-four hours.                                      
                                                                               
In response to concerns of Representative Kelly,                               
Representative Berkowitz explained that if the victim was                      
in custody, and assuming that there was an order of no                         
contact by the arresting magistrate, there could be a                          
narrow window when the defendant could talk to the victim.                     
Representative Kelly questioned how that could occur as the                    
defendant would be locked up.  Representative Berkowitz                        
explained that after the formal arraignment occurs, the                        
victim could indicate that they need to speak with the                         
defendant; the judge would then be in control of that                          
determination.  Representative Kelly reiterated his concern                    
with the long-term contact limitation proposed in the                          
legislation.                                                                   
                                                                               
Co-Chair Hanley pointed out that in present law, the judge                     
could issue a "no contact order" or a restraining order.                       
Ms. Carpeneti pointed out that the legislation does not                        
address long-term communication.  After the person is                          
arraigned, the Court has the ability to order the defendant                    
not to have any contact with the victim.  She stressed that                    
the Court uses common sense in making those determinations,                    
and that the Court can establish procedures in which                           
business can be taken care of between the two people.                          
                                                                               
Co-Chair Hanley spoke to the difference between version "P"                    
and version "Q".  The "P" version contains broader language                    
in relationship to the person who commits the crime and the                    
person who is the victim.  The "P" version is also more                        
wide spread and is not just crimes against another person.                     
He recommended adopting the version that specifies crimes                      
against a person rather than the "P" version.  He requested                    
further information on the proposed amendment.  [Copy on                       
File].                                                                         
                                                                               
Ms. Carpeneti stated that the amendment addresses concerns                     
that once the Court had ordered a person not to have                           
contact with the victim,  following the hearing, the                           
defendant would then be ordered again not to contact the                       
victim for safety reasons.  She commented that at this                         
time, there is no good way to enforce that order.  The                         
amendment would propose that an additional crime be added                      
to implement the order.  Co-Chair Hanley pointed out that                      
the amendment would create a different charge.                                 
Representative J. Davies questioned if violation of the                        
offense as recommended in the amendment would result in a                      
class A misdemeanor.  Ms. Carpeneti noted that the maximum                     
punishment for that offense would be 1 year in jail or a $5                    
thousand dollar fine.                                                          
                                                                               
Representative J. Davies created a hypothetical situation                      
in which the defendant is charged with domestic violence                       
and then the complaint withdrawn; if no other contact was                      
violated, would they then be responsible only for the "no                      
contact" charge.  Ms. Carpeneti replied that could be                          
possible, although, highly unlikely.  Co-Chair Hanley                          
disagreed.  He thought that there would be many defendants                     
who would violate the "no contact" order.                                      
                                                                               
Co-Chair Hanley recommended that the proposed legislation                      
be held over in order to create a new committee substitute                     
to consolidate concerns of Committee members and                               
incorporate the amendment.                                                     
                                                                               
HB 245 was HELD in Committee for further consideration.                        
                                                                               
(Tape Change HFC 98- 35, Side 1).                                              
HOUSE BILL NO. 231                                                             
                                                                               
"An Act relating to regulation of snowmobiles."                                
                                                                               
EDDIE GRASSER, STAFF, REPRESENTATIVE BEVERLY MASEK, noted                      
that HB 231 was the result of work done by the Alaska State                    
Snowmobile Association (ASSA) and the Division of Parks and                    
Outdoor Recreation, Department of Natural Resources (DNR).                     
He believed that the legislation would be an important tool                    
in promoting this activity in Alaska, as well as creating                      
greater opportunities for winter recreation in many areas                      
of the State.                                                                  
                                                                               
Mr. Grasser commented that there has been a statutory                          
requirement for registering snowmobiles since 1968,                            
however, few Alaskans have participated.  By allowing                          
dealers to handle registrations at the time of purchase, HB
231 will establish an easier process for users to comply.                      
The legislation also allows dealers and other agents to                        
undertake registration renewal.                                                
                                                                               
Mr. Grasser continued, it is important to snowmobile                           
enthusiasts to have a good system in place to provide an                       
accurate accounting of the number of snow machines in                          
Alaska.  This information is an integral part of the                           
formula used to acquire trail moneys available from the                        
National Trails Fund.                                                          
                                                                               
He summarized HB 231 would be a good initial step in                           
developing a system providing for snowmobile registration.                     
The State will benefit with help from the federal                              
government.                                                                    
                                                                               
Representative J. Davies asked if there is a fee charged                       
for registration at this time.  Mr. Grasser said there is a                    
$5 dollar fee to register a snow machine, which is                             
collected at the point of sale.  The goal would be to                          
establish a point of sale registration in order to                             
determine how many snowmobiles are owned in the State.                         
                                                                               
Representative Kohring echoed Representative Martin's                          
concern in adding an additional public tax.  He inquired if                    
the dealers would be doing the work of the Division of                         
Motor Vehicles (DMV).  Mr. Grasser replied that dealers                        
have voluntarily been providing this work over the years.                      
In this mandatory registration program, point of sale would                    
require that all dealers in the State become responsible to                    
provide the service.  With a new program available through                     
the Department of Administration (DOA) and Internet, it                        
will be easier to register.                                                    
                                                                               
Representative Kohring asked how this legislation would                        
impact a private transaction.  Mr. Grasser replied that the                    
new owner must continue to register with DMV.                                  
                                                                               
Representative Kelly expressed concern with the language                       
used in reporting of accidents.  Mr. Grasser explained that                    
with this bill, snow machines would be treated the same as                     
boats have been.  All transactions are required by the bank                    
and will be reported to the Universal Commercial Code                          
(UCC).  When buying from an individual, the buyer could                        
check with the UCC to guarantee there is no lien.                              
                                                                               
Representative Kelly asked how a new owner of a used                           
machine accesses information regarding the previous                            
owner(s).  Mr. Grasser explained that would be the                             
responsibility of the purchaser, and that any individual                       
can call UCC and find out if there is a bank lien on the                       
machine. Mr. Grasser pointed out that currently, there is                      
an area on the registration card for lien holder                               
information.  DMV has advised that information will be                         
printed off with the Title of Ownership.                                       
                                                                               
Representative Martin thought that legislation should                          
achieve a higher public purpose.  Mr. Grasser commented                        
that the funds would indicate a certain number of snow                         
machines in the State and could then be used to determine                      
State's qualification for federal monies to help maintain                      
trails.  In order to qualify for those funds, there will                       
need to be a complete record of the number of snowmobiles                      
in the State.                                                                  
                                                                               
Representative Martin stated that the legislation would                        
present compliance difficulties for rural Alaskan                              
communities.   Mr. Grasser pointed out that the snow mobile                    
association supports passage of the proposed legislation.                      
He reiterated in order to qualify for the federal grant                        
requires snowmobiles be registered.                                            
                                                                               
Co-Chair Therriault asked the source of federal funding for                    
trails.  Mr. Grasser explained that currently there is a                       
non-highway tax for recreational trail users which has                         
created a pool of funds available to various states through                    
the Department of Transportation and Public Facilities                         
(DOT&PF).                                                                      
                                                                               
JIM STRATTON, DIRECTOR, DIVISION OF PARKS & OUTDOOR                            
RECREATION, DEPARTMENT OF NATURAL RESOURCES, noted that the                    
Department manages the grant program.  The funds come to                       
the State Parks office and then those monies are allocated                     
in grants up to $15 thousand dollars to trail clubs.                           
                                                                               
Representative Martin asked the percentage of rural                            
Alaskans that receive that funding.  Mr. Stratton did not                      
know the breakdown, however, agreed that most is                               
distributed to urban users.  He added that the Department                      
of Transportation and Public Facilities has granted funding                    
to the rural communities to help stake snowmobile trails on                    
the Seward Peninsula.                                                          
                                                                               
Representative J. Davies suggested that there should be a                      
governmental mechanism to collect the fees.  He added, the                     
responsible snow mobile owners are currently paying to                         
provide for the trails that everyone uses.  The bill                           
requires that everyone pay their fair share.                                   
                                                                               
Representative Foster pointed out that the legislation                         
could only work at the point of sale.  He noted that it                        
would not address problems in rural Alaska as the DMV                          
offices are few and far between.  Representative Foster                        
advised that there needs to be some system of notification                     
to remind snow machine owners that their registration is                       
due to renew.  Mr. Grasser believed that by moving that                        
Division to the Department of Administration will help                         
address this problem by creating a mail out reminder.                          
                                                                               
Mr. Grasser noted that in the original version of the bill,                    
there was an exception for rural Alaska, although, that                        
clause had been removed in the House Judiciary Committee                       
version.                                                                       
                                                                               
HB 231 was HELD in Committee for further consideration.                        
ADJOURNMENT                                                                    
                                                                               
The meeting adjourned at 3:30 P.M.                                             
                                                                               
H.F.C. 12 2/19/98                                                              

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